Opinion
No. 2-700 / 02-0056
Filed January 15, 2003
Appeal from the Iowa District Court for Wapello County, Annette J. Scieszinski, Judge.
Phillip Bechert appeals from the district court's order denying his petition for modification of the physical care, child support, and visitation provisions of the parties' dissolution decree. REVERSED IN PART, VACATED IN PART, AND REMANDED.
Theodore Sporer of Sporer Ilic, P.C., Des Moines, for appellant.
Kenneth Duker of Johnson, Hester, Walter Breckenridge, L.L.P., Ottumwa, for appellee.
Heard by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
I. Background Facts and Proceedings.
The May 28, 1991, decree dissolving the parties' marriage granted Phil and Nikki Bechert joint custody of their daughter, Katie, born January 3, 1989. Nikki was granted physical care subject to Phil's right to visit Katie as provided.
These proceedings commenced with Phil's April 27, 2001, petition to modify the physical care, visitation, and child support provisions of the 1991 decree. The trial court's findings of fact entered following trial on the merits of Phil's petition provide in part:
Nikki has made nontraditional choices in the ten years since she emerged from her marriage to Phil. At first glance, several "fact-bites" tarnish her image as a suitable custodial parent. She has had at least two, and perhaps three, extramarital sexual relationships that involved men being present in the home she shared with Katie. She has moved a dozen times. She used a boyfriend for child-care over time, and he in turn, sexually abused her daughter. She quit her Ottumwa employment to take on an out-of-state railroad job. She left Katie with her parents in Ottumwa for nearly four years while she trained for secured, and settled into her new career. She has not attended many of Katie's school, athletic, church, or 4-H events in those four years. But, there is more to the story. . . .
The court also found:
Nikki displays a mature, insightful demeanor that is consistent with the careful plan she has pursued for her own permanent financial and emotional stability and for Katie's permanent well-being. Her employment is secure, and she will continue to earn approximately $35,500 annually, with good railroad benefits, including health insurance for Katie. She is settled into a safe and adequate home environment in North Dakota. She has come to grips with her relationship mistakes of the past, and does not plan to seek male companionship while she focuses on raising her daughter. Nikki will continue to keep Katie's grandparents involved in her life, and she will encourage and facilitate Katie's appropriate respect for her father, and accommodate close contact with him. Nikki has demonstrated that she can set aside the differences she has with Phil, and continue to openly broach necessary parental communication.
Phil's negative attitude about Nikki and her parenting role reveals a hostility that will impede Katie's development if she were to be placed in her father's day-to-day care. He has difficulty communicating with Nikki. Phil, would, however, be able to support an active and ongoing relationship between Nikki's parents and Katie. . . . (Footnotes omitted.) Based on these findings the trial court concluded:
Despite the sum of substantial developments proven here, Phil has failed to demonstrate that he can offer superior care for Katie at this time, and he has not shown that her best interests would be detrimentally affected by [Nikki's relocation to North Dakota]. Katie's best interests are served in the physical care and custody of Nikki. However, a modification of visitation terms is warranted, to preserve Phil's existing relationship with his daughter.
Phil's requested modification was accordingly denied. The trial court's decree also grants Nikki's request for increased child support. Phil was ordered to pay $10,000 towards Nikki's trial attorney fees. Phil's posttrial motions were denied, resulting in this appeal.
On appeal Phil raises the following issues:
I. The district court erred by failing to change physical custodial placement of the parties' minor child.
II. The trial court erred in awarding attorney fees to Nikki.
II. Standard of Review.
Our review in this equity action is de novo. Iowa R.App.P. 6.4. We give weight to the trial court's findings of fact, especially when considering the credibility of the witnesses but are not bound by them. Iowa R.App.P. 6.14(6)( g).
III. Physical Care.
In child custody proceedings the controlling concern is the best interests of the child. Iowa R.App.P. 6.14(6)( o). Once physical care of a child has been fixed, it should be disturbed only for the most cogent reasons. In re Marriage of Melton, 256 N.W.2d 200, 205 (Iowa 1977).
To modify the physical care provisions of an existing decree, the party seeking modification must establish by a preponderance of the evidence conditions have so materially and substantially changed since the decree that the children's best interests make the requested change expedient. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The question is not which parent is now the preferred physical care provider, but whether the party seeking modification has met the heavy burden to warrant a change in physical care. In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980).
The evidence supporting the trial court's findings of fact concerning Nikki's postdecree relationships, employment, and residential history are largely undisputed. There is also no dispute concerning Katie's sexual abuse by Nikki's then live-in boyfriend and four-year deferral of Katie's primary care to her parents. We accordingly adopt these findings as our own.
We, however, disagree with the court's findings and ultimate conclusion concerning Phil's relationship with Nikki. While Phil's attitude towards Nikki could use improvement, its negative consequences have been overstated. The conclusion that Phil's hostility toward Nikki is a disqualifying circumstance is irreconcilable with evidence demonstrating his otherwise constructive joint custodial experience. Phil has faithfully paid child support, exercised visitation, and was generally cooperative with Nikki and her parents while Katie was living with them. The record additionally indicates that Phil has maintained an active interest in Katie's academic and social development. His home in rural Eldon is more than adequate to accommodate Katie's needs.
Contrary to the trial court's ultimate conclusions, we conclude Phil has met his burden to establish the requisite change in circumstances and that he can more effectively minister to Katie's well being. We also conclude, based on Nikki's discouraging history as Katie's physical care provider, that Katie's best interests are not served by leaving her in Nikki's physical care and relocation of her residence some six hundred miles away from Phil and other extended family. See Iowa Code § 598.21(8A) (2001) (relocation of 150 miles or more may be considered a substantial change of circumstances); see also In re Marriage of Winnike, 497 N.W.2d 170, 174 (Iowa Ct.App. 1992) (past parental performance indicative of future care parent capable of providing). We accordingly reverse the decision of the trial court and place Katie in Phil's physical care. Because circumstances affecting child support and visitation may have changed since the modification decree was entered, we remand those issues to the trial court for appropriate disposition in accordance with our opinion.
IV. Attorney Fees.
Iowa Code section 598.36 authorizes an award of attorney fees to the prevailing party in a modification proceeding. Because we have reversed the trial court's decision, Nikki is no longer entitled to an award of attorney fees. The trial court's award of $10,000 attorney fees to Nikki is accordingly vacated.
The district court's modification decree is reversed in part, vacated in part, and remanded for further proceedings in conformity with this opinion.